What makes a dismissal unfair

Employees with at least two years’ continuous service (see page 311) have the right not to be unfairly dismissed under section 94 of the Employment Rights Act 1996 (ERA 96). A dismissal will be unfair unless the employer can:

• show that the dismissal was for one of the five statutory fair reasons (see below); and

• satisfy the tribunal that it acted reasonably in all the circumstances by dismissing for that reason. The tribunal will take into account all the circumstances surrounding the dismissal including:

• the employer’s size; and

• the employer’s administrative resources.

In most cases, establishing that a dismissal is unfair involves a two-stage test. The first looks at whether the employer has established a statutory “fair reason”. The second (assuming there is a fair reason) looks at the “reasonableness” of that reason.

Some reasons for dismissal are automatically unfair. Where a dismissal is for an automatically unfair reason, there is no question of reasonableness. The employer is simply not allowed to dismiss for that reason. Automatically unfair reasons for dismissal are set out from page 298. Most, but not all, automatically unfair reasons for dismissal require no service. Instead, the employee is protected from day one of the employment.